Price v. Hickory Point Bank & Trust

841 N.E.2d 1084, 362 Ill. App. 3d 1211, 299 Ill. Dec. 352, 2006 Ill. App. LEXIS 4
Appellate Court of Illinois·Decided January 5, 2006·No. 4-05-0532·Published·Cited by 23 cases

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

In November 2004, plaintiff David Massey, as guardian of the estate of plaintiffs, Mikala and Mikal Price (twins, born in April 2000), filed a second-amended negligence complaint against defendants, Hickory Point Bank & Trust, Trust No. 0192; Macon County Title, LLC; Andrew Chiligiris; and Real Estate Managers, LLC. Specifically, plaintiffs alleged that while Mikala and Mikal were tenants in one of defendants’ properties, they were poisoned by exposure to lead-based paint. (Hickory Point Bank & Trust, Trust No. 0192, was dismissed as a party early in the proceedings.) Plaintiffs based their claim, in part, on defendants’ alleged violation of the Decatur Municipal Code and certain federal regulations that implement provisions of the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4851 (2000)).

In December 2004 and February 2005, plaintiffs filed motions for partial summary judgment, through which they sought findings on purportedly uncontested matters. In April 2005, defendants filed a motion for summary judgment. In June 2005, the trial court granted summary judgment in defendants’ favor, upon finding that (1) defendants had no knowledge that the premises contained lead-based paint prior to learning of the children’s injuries, and (2) defendants did not knowingly violate the federal regulations.

Plaintiffs appeal, arguing that (1) the trial court erred by granting defendants’ motion for summary judgment because (a) a violation of law constitutes prima facie evidence of negligence; and (b) the court improperly relied on an unpublished Illinois Appellate Court decision; and (2) the court erred by denying plaintiffs’ partial-summary-judgment motions. We reverse the court’s grant of defendants’ summary-judgment motion and remand for further proceedings.

I. BACKGROUND

According to plaintiffs’ second-amended complaint, in July 2000, Mikal and Mikala’s parents, Jenny and Michael Price, entered into a lease with Chiligiris for a house at 2075 E. William Street in Decatur and moved in. In November 2001, the children’s physician detected elevated levels of lead in their blood. The physician notified the Macon County health department, and on December 6, 2001, the department conducted an investigation at the William Street residence. In January 2002, the department issued a notice of its findings to the trust officer at Hickory Point Bank and Trust and sent a copy to Chiligiris. Findings included that lead hazards were present on certain windows, baseboards, and doorjambs. The department gave defendants until February 9, 2002, to mitigate the lead hazards at the residence.

Plaintiffs’ second-amended complaint also alleged that (1) defendants knew or should have known, based on Chiligiris’s years of experience with sale, management, renovation, repair, and rental of residential real estate, of the hazard to children posed by lead-based paint; (2) defendants knew that children would be residing at the William Street residence when the Price family entered the lease; and (3) prior to purchasing the residence, Chiligiris was notified of the dangers of lead-based paint and of the recommendation to conduct a risk assessment or inspection for lead-based paint prior to purchase or rental of the property.

The second-amended complaint further alleged that defendants were negligent for (1) leasing the William Street residence to the Price family with lead-based paint present in the interior and exterior in violation of Decatur’s Municipal Code, which adopted the Building Officials and Code Administrators’ (BOCA) National Property Maintenance Code, 1993 edition (specifically, sections 106.1, 303.4, and 305.4 of the BOCA Code); (2) failing to notify the Price family of the presence of lead-based paint at the residence; (3) failing to inspect the residence for the presence of lead-based paint before renting it to the Price family; and (4) failing to disclose to the Price family information about protection against lead-based paint, in violation of federal law— namely, the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4852(d) (2000)) and the federal regulations implementing the Residential Lead-Based Paint Hazard Reduction Act (40 C.F.R. §§ 745.100 through 745.119 (2000)).

In December 2004, plaintiffs filed their first motion for partial summary judgment. Plaintiffs sought a finding by the trial court that defendants failed to warn the Price family about the risks and dangers of lead-based paint in the William Street residence. In February 2005, plaintiffs filed another motion for partial summary judgment. In that motion, plaintiffs sought a finding that defendants had a duty to warn the Price family about lead-based paint hazards when they entered the lease. Following an April 2005 hearing, the trial court entered a docket entry order in which it made the following findings:

“1. There is no evidence presently before the court that the [djefendants had actual or constructive knowledge, prior to the inception of the lease, that the leased premises contained lead-based paint.
2. The affidavits of Jenny and Michael Price suggest that they never received a [l]ead-[pjaint [disclosure [fjorm from defendants prior to the inception of the lease.
3. The federal statute and the federal regulations suggest that a [ljessor shall disclose to the [ljessee the presence of any KNOWN lead-based paint and/or lead-based paint hazards.
4. There remain genuine issues of material fact.”

The court denied both of plaintiffs’ motions for partial summary judgment.

Later in April 2005, defendants filed a motion for summary judgment, asserting that they were entitled to judgment as a matter of law, in pertinent part, because (1) plaintiffs neither alleged facts nor developed any evidence that defendants had actual or constructive notice of lead-based paint at the William Street residence, and without such notice, defendants could not be held liable; and (2) plaintiffs neither alleged facts nor submitted any evidence to show that defendants knowingly violated the Residential Lead-Based Paint Hazard Reduction Act, and absent evidence of a knowing violation, defendants had no liability; and (3) defendants had no knowledge of the presence of lead-based paint prior to receiving the mitigation notice letter from the health department.

In May 2005, plaintiffs filed their third-amended complaint, which was amended only to correct citations to the Decatur Municipal Code.

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Price v. Hickory Point Bank & Trust, 841 N.E.2d 1084, 362 Ill. App. 3d 1211, 299 Ill. Dec. 352, 2006 Ill. App. LEXIS 4 (Ill. Ct. App. 2006).

841 N.E.2d 1084 (Price v. Hickory Point Bank & Trust) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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